Naturally, gays rights activists
are optimistic they'll win their fight for marriage equality
in the Supreme Court. But the court could set the gay
rights movement back years and even make it easier for states to
discriminate against gays, various legal experts told
Business
Insider.

The gay marriage battle has two fronts in the Supreme Court.

In one case,
83-year-old Edith Windsor is fighting to overturn the
Clinton-era Defense of Marriage Act, which forbids the federal
government from recognizing same-sex marriage. DOMA forced
Windsor to pay a lot of taxes on her wife's estate when she died
that a heterosexual widow wouldn't have had to pay.

In a second case, an anti-gay marriage coalition
is fighting to revive Proposition 8, California's
voter-approved gay marriage ban. A federal judge and a federal
appeals court struck Prop 8 down as unconstitutional.

The worst-case scenario for gays is obviously that Windsor loses
her fight to kill DOMA and the anti-gay marriage group manages to
revive Prop 8.

But, depending on how the court words its rulings, the
outcome for gays could be particularly bad.

The Congressional group defending DOMA made an argument in its
Supreme Court brief that
could be damning for gays if a majority of the Supreme Court
buys it.

That group, the Republican-dominated Bipartisan Legal
Advisory Group, said the government doesn't need to go out of its
way to protect gay people because they already have "remarkable
political clout."

At issue is a legal doctrine known as "heightened scrutiny,"
which makes it tougher to keep laws that negatively impact groups
that have endured discrimination.

The Supreme Court will also have to decide whether
"heightened scrutiny" applies to Proposition 8.

If the Supreme Court rules that Prop 8 or DOMA don't get
heightened scrutiny, that rationale would apply to all laws
affecting gays, experts said.

Without "heightened scrutiny" it could be a lot harder to
strike down laws that discriminate against gay people, including
laws that forbid same-sex couples from adopting children,
UCLA law professor Adam Winkler told BI.

That could set back a movement that's gained a lot of momentum in
a very brief period of time.